Eran Abatay and Others v Bundesanstalt für ArbeitTHE WORK PERMIT REQUIREMENT IMPOSED ON TURKISH DRIVERS OF LORRIES REGISTERED IN GERMANY
WHO DRIVE BETWEEN TURKEY AND GERMANY FOR AN UNDERTAKING ESTABLISHED IN TURKEY CONSTITUTES
AN OBSTACLE TO THE FREEDOM TO PROVIDE SERVICESIt is for the national courts to determine whether that requirement places the
applicants in a worse position in relation to the rules applicable in Germany
before the entry into force of the Additional Protocol to the EEC-Turkey Association
Agreement

To promote their economic relations, the European Community and Turkey signed an Association
Agreement in 1963, which was supplemented in 1972 by an Additional Protocol. Decision
No 1/80 of the Association Council was subsequently adopted under that agreement.

The Additional Protocol and Decision No 1/80 contain "standstill clauses", in other words,
provisions prohibiting new restrictions in certain fields. The Additional Protocol contains a standstill
clause concerning freedom of establishment and freedom to provide services between the EEC
and Turkey. Decision No 1/80, which concerns freedom of movement for workers, contains
a standstill clause concerning the conditions of access to employment for workers legally
resident and employed in their respective territories.

Before 1 September 1993, German law provided that non-German travelling personnel working in
international haulage for undertakings established in Germany did not need a work permit.
After that date only travelling personnel working for employers established abroad were exempt
from the work permit requirement. Since 10 October 1996, the work permit exemption
has been applicable only if the vehicle is also registered in the State
in which the foreign employer is established.

Mr Abatay and the other plaintiffs are Turkish nationals who live in Turkey
and work as drivers in international haulage. They are employed by a Turkish
company, established in Turkey, which is a subsidiary of a German company, established
in Germany. Both companies import fruit and vegetables into Germany from Turkey using
lorries registered in Germany in the name of the German company and driven
inter alia by Mr Abatay and Others. The Federal Employment Office had issued
a work permit to each of those drivers until 30 September 1996. After
that date it refused to issue them further permits. (Case C-317/01)

Mr Sahin, a former Turkish national who has been a German national since
1991, has a transport business in German, a branch of which is established
in Turkey. The German undertaking owns several lorries, registered in Germany, which it
uses for international haulage between Germany, Turkey, Iran and Iraq. Even before September
1993, Mr Sahin used Turkish drivers living in Turkey to drive the lorries
registered in Germany. According to the Federal Employment Office those drivers did not
need a work permit. However, from the middle of 1995, it took the
view that they were no longer exempt from the work permit requirement. (Case
C-369/01)

Mr Abatay and his colleagues and Mr Sahin argued before the German courts
that lorry drivers working in international haulage are still exempt from the requirement
for a German work permit for the journey between Turkey and Germany on
the basis of the standstill clauses in the Additional Protocol and Decision No
1/80. The Bundessozialgericht referred questions on the interpretation of those clauses to the
Court of Justice of the European Communities.

According to the Court, the standstill clauses in the Additional Protocol of 1972
and Decision No 1/80 may be relied on by Turkish nationals in the
Member State concerned to prevent the application of inconsistent national law.

The Court finds that those provisions lay down clear, precise and unconditional obligations.

The Court has considered the scope of the two clauses and concluded that
they are of the same kind and pursue the same objective. They are
intended to create conditions conducive to the progressive establishment of freedom of movement
for workers, of the right of establishment and of freedom to provide services
by prohibiting national authorities from creating new obstacles to those fundamental freedoms.

The Court has then applied to the standstill clause in Decision No 1/80
the same interpretation it gave to the equivalent clause concerning freedom of establishment
and freedom to provide services. As a result, it holds that the first
of those clauses prevents Member States from applying to Turkish nationalslegally present
on their territory less favourable treatment as regards access to first employment than
that applicable at the time of the entry into force of Decision No
1/80 (1.12.1980).

However, the standstill clause in Decision No 1/80 is not applicable to the
present cases because that decision is aimed at the integration of Turkish workers
in the Member State through lawful employment over a certain period.

The Court has held on that point that, although the Turkish drivers at
issue are in Germany in a lawful position as regards employment they are
not present in that State for long enough periods to allow them to
be integrated in Germany as a host Member State.None the less, the standstill clause of the Additional Protocol may be relied
on by an undertaking established in Turkey which is lawfully providing services in
a Member State and by the Turkish drivers employed by such an undertaking.

On the other hand, the Court has held that, in order for a
provider of services to rely on the freedom to provide services vis-à-vis the
State where he is established, those services must be supplied to persons established
in another Member State. Accordingly, a company like Mr Sahin's German undertaking cannot
rely on the protection of that standstill clause because those using the services
are also established in Germany.

Finally, the Court finds that the German legislation of 1996 entails restrictions on
the freedom to provide services, but that it is for the national court
to determine whether those restrictions are new.

The Court has already held that national legislation which makes the provision of
certain services on national territory by an undertaking established in another Member State
subject to the issue of an administrative authorisation such as a work permit
constitutes a restriction on the fundamental principle enshrined in the Treaty. In accordance
with the Association Agreement, that case-law is applicable by analogy.

As regards the question whether the restrictions entailed by the German legislation are
new, it is for the German court, which has jurisdiction to interpret national
law, to determine whether the national legislation at issue results in a worse
position for the applicants compared with the rules applicable in Germany before the
entry into force of the Additional Protocol (1.1.1973).

Unofficial document for media use which does not bind the Court of Justice

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